MICHELLE WILLARD, Post Staff Writer
Posted: Sunday, October 5, 2008 7:17 am

The Sheltons had their day in court Wednesday as their challenge to the county’s denial of the Bible Park USA rezoning went to trial.

The family filed suit against Rutherford County in June challenging the county’s denial of a rezoning request by BPU Holdings, LLC for the development of Bible Park USA. The Shelton family owns the majority of the 240 acres optioned by BPU Holdings.

Parties filed additional briefs Friday. Chancellor Robert Corlew will review all evidence and arguments and render a judgment soon.

“This case is not about the Bible Park or whether it is a good idea or a bad idea …” Shelton family attorney Taylor Harris said to Corlew.

“This is about transparency in government. This is about due process. …” Harris continued. “It is about doing the right thing for the citizens of this county …

“This is almost like a class action for the citizens of the county,” Harris continued. “It will make the county better for citizens and landowners.”

C. Dewees Berry, representing the county, countered in his opening statement the case only concerns two key points, the challenge to Section 4.05 of the county’s zoning resolution and were the protest petitions validated correctly.

“Mr. Harris has thrown out a number of things, but the county contends it boils down to just two things,” Berry said.

In their lawsuit against Rutherford County, the Sheltons claim County Attorney Jim Cope overstepped the bounds of his job by ruling a landowner petition against the proposed park was valid.

In the days leading up to the May 15 county commission vote on the rezoning request, Cope, along with Regional Planning Commission staff, reviewed 27 petitions submitted by surrounding landowners in opposition to the development of the park.

According to Section 4.05 of the Rutherford County Zoning Resolution, if 20 percent of surrounding landowners submit notarized petitions opposing development, then the proposed development requires a two-thirds majority vote for approval.

“This simple provision is at the heart of this lawsuit. …” Berry said. “These people have as much right to be heard as the Sheltons.”

County Planning Director Doug Demosi verified the deeds and found 80 owners of the property surrounding the Shelton property, meaning 16 signatures were needed to force a two-thirds majority.

Cope advised 18 petitions were valid. As a result, the park’s rezoning and conditional-use permit request required a two-thirds majority from the full commission. During its May 15 meeting, the commission voted 12-9, which fell short of approval by two votes.

The Shelton family and Harris contend at least three of the approved petitions should be discounted.

One was a petition submitted by James Mullins, who lives on Florence Road. A few days before the vote, Mullins sent a request to the planning commission to remove his petition, but it was kept in.

Two other petitions from the Hogues, whose property abuts the Sheltons, should have been discounted, Harris contended, because they were filled out improperly. The petitions state the owners’ property is adjacent to land owned by G.E. and Kathleen Lowe, when in fact it shares about ten feet of property line with the Sheltons.

“If you discount Mullins, you’ve got 17. If you discount the Hogues, you get 15,” Harris said. “And that does not meet the 20 percent threshold.”

Therefore the two-thirds majority vote is unnecessary and the rezoning request only required a simple majority or 11 votes to pass, he contended.

The lawsuit also challenges the legality of Section 4.05 in general. Harris argued the statute does not contain any notification language in it and therefore violates due process of law.

Due process is, in part, an individual’s right to notification by the government and is protected by the Fifth and Fourteenth Amendments.

Berry argued it didn’t matter if the Sheltons were notified, because BPU Holdings was and that is the name on the zoning application.

“The county said they didn’t send a letter, but they (the Sheltons) knew about it anyway,” Berry said.

Michelle Willard can be contacted at 615-869-0816 or mwillard@murfreesboropost.com.